Monday, September 03, 2007

Snuff Films and the First Amendment

In my post yesterday on the release of OJ Simpson's If I Did It by Ron Goldman's family, I asked rhetorically how different this book is from a snuff film. Here I want to pursue a related question: What protection, if any, does the First Amendment afford to snuff films? (A snuff film, for anyone unfamiliar with the term, is a film of an actual murder.)

Obviously, there is no First Amendment protection for making a snuff film. That's murder. (Oddly enough, the filming of sex can give it protection it otherwise lacks. If John the john pays Harriet the hooker to have sex with him, that's the illegal act of prostitution, but if Pete the pornographer pays Paul the porn star and Paula the porn start to have sex with each other, then, so long as the resulting film is not obscene, that's legal. For a further exploration of this oddity, see Sherry Colb's 2005 FindLaw column here. But I digress. Surely, there is no analogous exception for making snuff films.)

What about exhibiting a snuff film, once made? The federal courts do not seem to have addressed the question whether snuff films can be made illegal. A few lower court judges and some commentators have said---without much analysis---that snuff films are proscribable on the same theory that child pornography is: Just as children are not legally capable of consenting to be filmed, so we can presume that no one (or almost no one) would consent to be murdered for a film (or any other purpose).

Meanwhile, some other commentators have simply asserted that snuff films are protected by the First Amendment, citing, for example, the circulation on the internet of the video of Daniel Pearl's murder. The best argument for this view would rely on the Supreme Court's 1991 decision in Simon & Schuster v. Crime Victims Board. There, the Court invalidated New York's "Son of Sam Law," which required that all income from a criminal's book or other depiction of his crime be divulged to a fund for victims. (The actual case involved Henry Hill's Wiseguy, later made into the film Goodfellas.) Singling out speech about crimes, among all the ways that a criminal may profit from his crime, the Court said, is an impermissible content-based restriction. So, it could be argued, any law that specifically targeted snuff films, would be likewise content-based. Moreover, because the First Amendment pretty clearly protects a journalist who displays footage of a killing in which he in no way participated, going after the snuff film would be impermissibly speaker-based.

That's a pretty good argument, but not a slam dunk. In Simon & Schuster itself, the Court did not say that the law was per se invalid because content based (as Justice Kennedy in a concurrence in the judgment thought it should have). Rather, the Court subjected the NY law to strict scrutiny and found it wanting. Justice O'Connor's majority opinion cited numerous valuable works (including works by Emma Goldman, Dr. Martin Luther King, Jr., and Henry David Thoreau) that could not have been published (except at a financial loss) under the law. By contrast, it is hard to imagine what public interest is served by the distribution of a film showing someone being murdered. And of course, as in the child pornography context, prohibition of the end product should dampen demand and thus diminish the incentive for the making of snuff films.

Needless to say, I've only scratched the surface of this interesting but perhaps unimportant topic. Why unimportant? Because, according to the great internet debunker, Snopes.com, there are no actual snuff films out there. To my mind, however, this is just a matter of nomenclature. Snopes apparently doesn't count terrorist videos of beheadings and other killings (perpetrated at least in substantial part for the effect that the films will have on their audience) as snuff films, but much of the analysis of this "genre" would be the same. Moreover, lots of academic attention gets paid to interesting but merely hypothetical questions, and so it strikes me that a good law journal article or student Note could be written about this topic. (If you choose to write one, be sure to credit Dorf on Law with the inspiration. Nothing drives blog traffic like footnotes in law review articles!)

14 comments:

If John the john pays Harriet the hooker to have sex with him, that's the illegal act of prostitution, but if Pete the pornographer pays Paul the porn star and Paula the porn start to have sex with each other, then, so long as the resulting film is not obscene, that's legal.

So obscene speech isn't protected in any context? Does that mean that under the First Amendment, the state of Georgia could outlaw hard-core pornography offerings via Direct TV pay per view? What if my neighbors make an "obscene" sex video -- does their privacy trump the state's interest in outlawing "obscene" speech?

For some reason, I thought obscenity rules only applied to use of the public airwaves and other exception areas -- like protecting children, etc.

Obscenity is not protected by the First Amendment, but the Court has defined what counts as obscenity pretty narrowly. It must appeal to the prurient interest (or "make you horny" as Austin Powers would say); be patently offensive; and lack serious literary, political, scientific, or artistic value. If it doesn't meet any part of this definition, it's protected.

As for your neighbors making a sex video, the Court has held that the First Amendment does protect the possession of obscenity in your home. So you can't buy it or sell it, but you can't be punished if you have it. And since the only way to have it without buying it is to make it, your neighbors should be fine.

I sometimes use the example of snuff films in my First Amendment class to explain the idea of substantial overbreadth. But I always assumed that a snuff film had a sexual element to it, which makes obscenity law the applicable framework. A quick check on Wikipedia suggests that some definitions of snuff films require that they contain pornography, while other definitions do not.

If a state did outlaw films depicting the murder of someone during sex, I think the law would likely be upheld. Such films appeal to the prurient interest (though they don't make most people horny, "prurient interest" includes a morbid fascination with sex), are patently offensive in most communities, and probably lack serious literary, artistic, political, or scientific merit. It's true that a few snuff films might have literary, artistic, political, or scientific merit, but this is where I explain substantial overbreadth to my class. A law is not overbroad just because it prohibits a sliver of protected speech; it must be substantially overbroad in relation to its plainly legitimate reach. And I don't think a law banning films depicting the murder of someone during sex would meet that criteria.

What's odd about current First Amendment law is that this entire framework is inapplicable as soon we take the sex out of the film. Then, the film is presumptively protected unless, as you point out, the state is able to satisfy strict scrutiny. I think this just illustrates how much traditional sexual mores have influenced the law of free speech.

I agree with your assessment. Apart from the ambiguity over whether a snuff film must include sex to satisfy the definition, I thought it was clear that it has to be an actual murder as opposed to one acted out to count as a snuff film. But I also agree that this distinction doesn't seem to matter for obscenity doctrine (although it does matter for child pornography).

but the Court has defined what counts as obscenity pretty narrowly. It must appeal to the prurient interest (or "make you horny" as Austin Powers would say); be patently offensive; and lack serious literary, political, scientific, or artistic value. If it doesn't meet any part of this definition, it's protected.

I don't want to stray from Mike's topic, but I will say that this criteria has never really come across as narrow to me (or at least not narrow enough). I suppose that's as objective a rule as could be defined for this topic, but even so, why should the government get to decide what is offensive or has "artistic" merit? For that matter, what makes lust (prurience) an inherent constitutional exception to a general rule erring on the side of free expression?

It seems to me that people should figure out which forms of expression suit them through free association. I don't see why the power of the state should be applied when we're talking about victimless adult activity(**); indeed, I think it's a requirement of limited government that the state be kept out. (Maybe I just liked the book Stranger in a Strange land a bit too much :) )

(**)Perhaps somebody could create a public health justification, but that's a stretch when we're talking about videos (imo). And in any case, these laws are typically premised on "morality", not empirical health research.

Of course, I know you were just explaining the law to me free of opinion -- thanks for that!

What's odd about current First Amendment law is that this entire framework is inapplicable as soon we take the sex out of the film. Then, the film is presumptively protected unless, as you point out, the state is able to satisfy strict scrutiny.